V.R. Newaskar, J.
1. This second appeal involves a question regarding limitation, It arises out of a suit for possession brought by the plaintiff-respondent for possession of land situated in the village Titranya bearing Khasra No. 53 measuring 11.1 acres and assessed to the revenue of Rs. 3-12-9. The suit was based on plaintiff's title and consequent right of the plaintiff to possess the same. There were no allegations as to when and how the defendant came into occupation and by what right. The cause of action was stated to be a demand for possession made by the plaintiff on 11-12-1954 by means of a registered notice and its non-compliance. Plaintiff claimed possession and mesno profits at Rs. 100/- per annum.
2. The suit was resisted by the defendants who denied plaintiff's title to the land and asserted their own title and possession since generations. They expressed their ignorance regarding the existence of Patta of that land in plaintiff's name and the circumstances in which it was obtained. They also pleaded adverse possession for a period in excess of 60 or 70 years openly and as of right. This circumstance, according to them, had brought about an end of plaintiff's title, if any, to that land and had created one in themselves.
3. On these pleadings issues regarding plaintiff's title and its loss by the plaintiff due to adverse possession by the defendants and their predecessors for over 12 years were framed.
4. The trial Court found plaintiffs title to the land in dispute to have been established. It further found that the defendants were in occupation as sub-tenants of the plaintiff. The possession of the defendants was consequently held to be permissive in character and they were therefore held not entitled to claim title of the land by adverse possession. The suit was consequently decreed.
5. The appellate court in a brief and superficial consideration of the evidence agreed with the trial court on both these issues and relying upon the decisions reported in AIR 1933 Lah 105, Mt. Raushan Ara Begam v. Mahmud Beg and (S) AIR 1955 Nag 221, Ramchandra v. Vasant, it confirmed the decision of the trial Court and dismissed the appeal.
6. In this second appeal Mr. Sanghi for the appellant contends that the plaintiff had nowhere asserted that the defendants were his tenants. The courts below in decreeing the suit on that basis have given effect to a case which the plaintiff had not put forward. On the case set up by the plaintiff, and the facts as they appeared on record it is Article 142 of the Limitation Act which is applicable. The learned counsel relied upon the decisions in 8 Moo Ind App 199, Maharajah Koonwur Nitrasur Singh v. Baboo Nund Loll Singh; AIR 1940 Mad 798 (FB), Official Receiver v. Govindaraju and 18 Ind Cas 17, Dharani Kanta Lahiri v. Gabar Ali Khan, in support of his contentions.
7. On the other hand the learned counsel for the respondent contended that the title of the plaintiff being clear the defendant cannot succeed unless he shows that he had acquired title by adverse possession. In the absence of any indication presumption of tenancy or at any rate permissive character of possession ought to be made.
8. Before considering the matter on authorities I would consider it necessary, in view of imperfect reference to the factual materials on record, in the judgment of the court below, to mention what facts have been either admitted or proved.
9. The plaintiff claims the land on the basis of title based on a Patta issued in his name by the Government as also on the strength of receipt-book regarding the credit of Revenue, in respect of this land, in his name in the Revenue Records. Both the courts below found this to be sufficient evidence of title unless it were displaced by what the defendant established regarding his possession and the character of it. The plaintiff's suit for possession involves the acceptance of the fact that the defendant is in possession.
The plaintiff did not state in his plaint when and by what title the defendant entered into possession. But in his statement at the trial he stated that the defendant has been in possession for the last five or six years and that prior to that he was in possession. According to him the land had been given by him and his father for maintenance to the defendant under an oral agreement that the land should be returned whenever the plaintiff would claim it back. This allegation was not made in the plaint and the trial court should not have permitted the plaintiff to make out a case different from that with which he came to court. Vide AIR 1930 PC 57 (1). Siddik Mahomed Shah v. Mt. Saran.
The trial Court went a step further. The plaintiff in the plaint alleged title simpliciter to oust the defendant. At the trial he asserted defendant's possession under his leave and license. The trial court however found that he was a tenant. I wonder how was this permissible for the court to do so, with what the plaintiff asserted in the plaint, and in the witness box. The appellate court also fell in line with the trial court upon the point.
10. The defendant in his statement asserted his possession. According to him his father was in possession and after his death about 15 or 16 years back he continued in possession and paid the revenue although he had not with him the receipt book issued under the authority of the Revenue Authorities. He expressed his ignorance as regards the circumstances under which the land came into possession of his family.
All that he knew was that his father used to till the land and after his death he did so. Patwari Anokhilal and Patel Dasharath stated that they saw defendant's father Harsingh to be in possession of this land and not the plaintiff and his father. The revenue in respect of this land, was paid by the defendant but was credited in plaintiff's name. According to Anokhilal the defendant was shown by him as sub-tenant but stated nothing on what basis he did it.
He admitted that even where the land is transferred under a private and unsanctioned sale the transferee is shown as a sub-tenant in the annual village papers. Patel Dasharath stated that he had been seeing the land in defendant's possession for the last 30 or 32 years. Kekadia another witness examined by the defendant also spoke about defendant's possession since long.
11. Thus the evidence clearly established plaintiff's title based on Patta and the crediting of revenue in his name and defendant's possession and enjoyment of the land for over a period far in excess of twelve years and the payment of revenue by him. There was no other material to determine origin of this possession and the character of it.
12. Who under these circumstances is entitled to succeed? Had plaintiff come to court with an allegation of his possession and subsequent discontinuance of his possession or his dispossession it would have been incumbent upon him to prove not only his possession but also the existence of such possession within 12 years of the date of the suit. Is the position altered by his not making any assertion regarding his possession and its discontinuance?
13. To appreciate this we have to bear in mind the provisions of Articles 142 and 144 of the Limitation Act. Article 142 provides for a period of limitation for a suit on the allegation of the plaintiff regarding his prior possession and subsequent dispossession or dicontinuance of his possession. The period of limitation is 12 years. Article 144 on the other hand is a residuary Article and applies where any other article is inapplicable. It is therefore clear that Article 144 can only come in where Article 142 is inapplicable.
14. It is well established that where the possession of the defendant is permissive in character being under pure license, it is consistent with continuance of plaintiff's title in Spite of such possession whatever may be its duration. In such a case unless the defendant succeeds in establishing that his possession has matured into title by reason of his adverse possession for over 12 years he cannot prevent the plaintiff from obtaining possession exclusive or joint as the case may be of the property by means of a suit.
It is a question of fact whether the defendant's possession is permissive in origin and character and the plaintiff, seeking to eject the defendant, relying upon such a fact has to assert and prove it. He cannot simply by emitting to assert anything beyond title seek to rake advantage on the ground of his title by suggesting that every possession with anybody else than the title-holder should be presumed to be permissive.
15. In a somewhat early case of the Privy Council reported in 8 Moo Ind App 199, the plaintiff claimed possession of certain land as falling within their Zamindari Mouza Gopalpore while the defendant asserted that it was part of Mauza Ram-pore and had been in their possession since long. The plaintiff lost in India and he appealed to Privy Council. In considering the question from the point of limitation their Lordships observed at! page 220:--
'The Appellant is seeking to disturb the possession, admitted to have existed for about eleven years, of Defendants, who insist on a possession of much longer duration as a statutory bar to the suit. It clearly lies on him to remove that bar by satisfactory proof that the cause of action accrued to him (for that is the way in which the Regulation puts it) on a dispossession within twelve years next before the commencement of the suit, and, therefore, that he, or some person through whom he claims, was in possession during that period. No proof of anterior title, such as would be involved in the decision of the boundary question in his favour, can relieve him from this burden, or shift it upon his adversaries by compelling them to prove the time and manner of dispossession. The lands in question may have been part of Mouza Gopalpore, and as such may have been enjoyed by his ancestor, and yet he may have lost, by lapse of time, his right to recover them. Their Lordships, therefore, propose to consider in the first place, what evidence there is that the Appellant, or any person through whom he claims, was in possession of lands in question at any time within twelve years next before the commencement of the suit.'
The next case to be referred to is 16 Ind App 23, Mohima Chundar Mozoomdar v. Mohesh Chundar Neogi. In that case also plaintiff sued on his title in ejectment of the defendant who asserted his possession over 12 years. The observations of the Privy Council in that context are material. They say at page 26:--
'The learned Judge then says:-- 'When I showed above that the Plaintiffs are the rightful owners of the disputed land, it is for the ryot defendants to show that they are entitled to retain possession of these lands'. That, as a proposition of law, is one which hardly meets with the approval of their Lordships. This is in reality what in England would be called an action for ejectment, and in all actions for ejectment where the Defendants are admittedly in possession, and a fortiori where, as in this particular case, they had been in possession for a great number of years, and under a claim of title it lies upon the Plaintiff to prove his own title. The Plaintiff must recover by the strength of his own title, and it is the opinion of their Lordships that in this case the onus is thrown upon the Plaintiffs to prove their possession prior to the time when they were admittedly dispossessed, and at some time within twelve years before the commencement of the suit, namely, for the two or three years prior to the year 1875, or 1874, and that it does not lie upon the Defendants to show that in fact the Plaintiffs were so dispossessed.'
16. In AIR 1940 Mad 798 the plaintiff pleaded permissive possession of the defendant and failed to establish it. The question which arose was whether the plaintiff in such a situation is bound to prove his possession within 12 years of the suit or it is for the defendant to establish his adverse possession for the statutory period? The Full Bench answered the question by holding that the plaintiff must prove his possession within 12 years.
17. Is the situation avoided by not making any assertion as to permissive character of the defendant's occupation? In my opinion not. If the plaintiff, who wants to disturb the existing possession of the defendant by relying upon the circumstance that the defendant's possession is permissive, the justice of the matter requires that he must allege and prove. If he does not allege, the Court ought to proceed on the assumption that he has no assertion of that character to make.
18. In AIR 1937 Nag 129, Shankarsa v. Punam Chand, Bose, J., observed at page 130:--
'Article 142 deals with a case when a plaintiff while in possession of the property has been dispossessed or has discontinued the possession, and so whenever this is proved or admitted that article must apply, and in my opinion it will apply irrespective of the allegations in the plaint. Of course what is stated there will to a large extent determine the initial onus, but the moment the defendant establishes dispossession or discontinuance of possession then even though he can assign no exact date for it, Article 142 will apply. I cannot see how the defendant can be in a worse position than he would have been if the plaintiff had admitted dispossession in his plaint. As I see it the burden would in such a case shift to the plaintiff and he would have to prove a title which was subsisting at the date of the suit.'
19. Now in the present case though the plaintiff did not refer to his prior possession in the plaint he admitted that fact in his statement in the witness box. This admission apart from any other consideration takes the case out of Article 144 and it was incumbent upon the plaintiff to prove his possession within 12 years of the suit. The plaintiff no doubt asserted his possession about 5 or 6 years before the suit from the witness box but there is preponderating evidence consisting of the statements of the Patel, Patwari and one more witness besides defendant No. 1 that the defendant No. 1 and his father had been in possession tot over 30-32 years.
The courts below did not hold that these statements of these witnesses were incorrect. What they held was that the possession of the defendant was consistent with the continuance of plaintiff's title as the defendant was a sub-tenant. They did not however say what was the basis for such an assumption although it may have been based on what the Patwari stated namely that he had entered the defendant as a sub-tenant. It is difficult to see how, in the absence of any assertion or proof, the character of defendant's possession is determined by what the Patwari chose to say, feel or record.
20. On the whole as the case stands Article 142 of the Limitation Act applies and therefore Article 144 does not come into play and the plaintiff was bound to prove his possession within 13 years. He has failed to establish this. The plaintiff in these circumstances ought to fail.
21. Appeal is consequently allowed and plaintiff's suit is dismissed with costs throughout.